People v. Miller

• Citation: 69 Cal.App.4th 190,81 Cal.Rptr.2d 410
• Decision Date: 13 January 1999
• Docket Number: No. F025718,F025718
• Court: California Court of Appeals
• Parties: , 99 Cal. Daily Op. Serv. 458, 99 Daily Journal D.A.R. 476 The PEOPLE, Plaintiff and Respondent, v. Brian Jeffrey MILLER, Defendant and Appellant.

Page 410

81 Cal.Rptr.2d 410

69 Cal.App.4th 190, 99 Cal. Daily Op. Serv. 458,

99 Daily Journal D.A.R. 476

The PEOPLE, Plaintiff and Respondent, v. Brian Jeffrey MILLER, Defendant and Appellant.

No. F025718.

Court of Appeal, Fifth District, California.

Jan. 13, 1999.

As Modified Jan. 27, 1999.

Rehearing Denied Feb. 9, 1999.

Review Denied April 14, 1999.

[69 Cal.App.4th 196] John Ward, under appointment by the Court of Appeal, for Defendant and Appellant.

Daniel E. Lungren, Attorney General, George Williamson, Chief Assistant Attorney General, Robert R. Anderson, Assistant Attorney General, Stan Cross and Patrick J. Whalen, Deputy Attorneys General, for Plaintiff and Respondent.

OPINION

BUCKLEY, Acting P.J.

Defendant Brian Jeffrey Miller was convicted after jury trial of two counts of illegally possessing an explosive (picric acid and smokeless powder), two counts of illegally possessing a destructive device (incendiary and tracer ammunition), one count of illegally possessing dangerous fireworks, and one count of misdemeanor child endangerment. ¹ He contends on appeal that his suppression motion should have been granted and that instructional errors necessitate reversal. We disagree and will affirm.

FACTS

During the morning of August 6, 1995, Randy Raines saw a small child wandering around the neighborhood unattended. His wife, Jona Bowen-Raines, approached the child, who was calling for his mother. Lywinda Brittain Keast noticed the pair and approached. Ms. Keast told Ms. Bowen-Raines that the boy was named Jeffrey, and where he lived. Ms. Keast had found him alone in the street 10 days ago and had taken him back to the Miller residence. Ms. Bowen-Raines took Jeffrey to her house and called the police.

Bakersfield Police Officer Robert Grady arrived at the Raines's residence shortly before 11:00 a.m. He spoke with both Ms. Bowen-Raines and Ms. Keast. Both women "expressed their concern about the Millers leaving their children unattended on different occasions." Officer Grady then took Jeffrey back to the Miller residence. The front door was open about two inches. Officer Grady knocked on the door, rang the bell, and announced himself. He yelled that he "was from the Bakersfield Police Department," and asked whether "anybody was home." Receiving no response, he knocked several more times and again announced that he was from the police department. Officer Grady then pushed the door open and again announced himself. There was still no answer. The officer stepped inside the house. He was holding Jeffrey's hand.

Officer Grady saw defendant in a hallway near the kitchen. He asked defendant if the boy was his child and whether he lived at the residence. Defendant answered yes to both questions. He told the officer that he had been asleep and he did not know where his wife or other children were. Officer Grady asked defendant for identification, but defendant was unable to produce any. Officer Grady observed that defendant seemed very nervous, was slow to respond to questions, repeatedly indicated that he was thirsty, and had dilated pupils. Based on these observations, he believed defendant might be under the influence of cocaine or methamphetamine. When asked, defendant denied being under the influence of narcotics. Officer Grady then asked defendant for permission to search for any other children and for narcotics. Defendant replied, " 'Sure, go ahead. I don't have anything.' "

Numerous firearms, explosives, ammunition, dangerous chemicals, and firearms were found in the residence and garage. Literature discussing bomb making, sniper fire, and the Oklahoma City bombing was also discovered. ²

DISCUSSION

I. The suppression motion.

Defendant filed a Penal Code section 1538.5 ³ motion in which he argued, in relevant part, that the warrantless entry into his home violated his constitutional protection against unreasonable search and seizure, that Officer Grady did not comply with the knock-notice rule, that he did not consent to the search, and that its scope was excessive. The trial court rejected these arguments and denied the motion. Defendant challenges this ruling. As will be explained, we agree with defendant that the knock-notice rule is applicable here. However, since the warrantless entry was justified by exigent circumstances and Officer Grady provided adequate notice of his presence and intent prior to entry, the prerequisites to access were satisfied. Moreover, defendant voluntarily consented to the search and it did not exceed the scope of his consent.

A. Knock-notice.

A complete analysis of the knock-notice question presented here first requires a determination whether the warrantless entry itself was justified. "[A] warrantless entry by the police into a residence is at least presumptively unreasonable and therefore unlawful." (People v. Williams (1988) 45 Cal.3d 1268, 1297, 248 Cal.Rptr. 834, 756 P.2d 221.) However, "[t]he emergency exception to the warrant requirement has long been recognized in this state." (People v. Osuna (1986) 187 Cal.App.3d 845, 851, 232 Cal.Rptr. 220.) "Entry for the purpose of the protection of infant children must be justified on the same grounds as any other entry; there must be 'an imminent and substantial threat to life, health or property.' " (People v. Sutton (1976) 65 Cal.App.3d 341, 352, 134 Cal.Rptr. 921.) " 'There is no ready litmus test for determining whether such circumstances exist, and in each case the claim of an extraordinary situation must be measured by the facts known to the officers.' " (People v. Osuna, supra, 187 Cal.App.3d at p. 851, 232 Cal.Rptr. 220.)

"Two steps are involved in deciding whether exigent circumstances existed to justify a warrantless entry: '[F]irst, factual questions as to what the officer knew or believed and what action he [or she] took in response; second, a legal question whether that action was reasonable under the circumstances. [Citation.] On appeal, a reviewing court must affirm the trial court's determinations of the factual questions if they are supported by substantial evidence, but must take the ultimate responsibility for deciding the legal question according to its independent judgment.' " (People v. Higgins (1994) 26 Cal.App.4th 247, 251, 31 Cal.Rptr.2d 516; see also People v. Duncan (1986) 42 Cal.3d 91, 97-98, 227 Cal.Rptr. 654, 720 P.2d 2.)

In re Dawn O. (1976) 58 Cal.App.3d 160, 128 Cal.Rptr. 852 is instructive. There, Dawn went to a friend's house at approximately 6:15 p.m. Several hours later the friend's housekeeper called the authorities. The responding officer and Dawn walked back to her apartment. During the trip he gathered the impression that she had a sister. After knocking on the front door several times and receiving no answer, he entered the apartment and discovered two small children who had been left alone inside. The court upheld the entry, writing that "[a]n effort to return a small child to its home after it has been found locked out, lonely and unattended is not unreasonable. Further, under such facts, it is not unreasonable to determine if the child may be safely left at its home. The discovery of the unattended child here reasonably gave rise to the concern that another child might be unattended in the house." (Id. at p. 164, 128 Cal.Rptr. 852.)

Applying these principles to the instant case, we find the evidence of exigency to be clear. Jeffrey was found wandering the neighborhood wearing only a diaper and calling for his mother. Only a two year old, Jeffrey could not tell the officer whether he had wandered off and gotten lost, fled a dangerous situation or had been abandoned. Officer Grady was told that on at least one prior occasion when Jeffrey had been found unsupervised, a parent was actually at home. Thus, he had no way of knowing whether one or both of Jeffrey's parents were at home, and if so, whether they were simply unaware that their child had left the house or if they were in need of assistance. ⁴ Moreover, Officer Grady had been told that there were other children living in the Miller residence. He had no idea as to their whereabouts or condition. When he arrived at the Miller residence the door was slightly open, indicating that someone might be inside. Yet, when he rang the bell, repeatedly knocked and announced his presence, there was no answer. The totality of the circumstances support the propriety of Officer Grady's entry into the Miller residence to determine whether Jeffrey's parents and siblings were home, if they were in need of assistance, and whether Jeffrey could be safely reunited with them. (In re Dawn O., supra, 58 Cal.App.3d at p. 164, 128 Cal.Rptr. 852; see also People v. Sutton, supra, 65 Cal.App.3d at pp. 349-352, 134 Cal.Rptr. 921.)

We therefore turn to the manner of entry. Section 844, commonly known as the knock-notice statute, only references entries made for the purpose of arrest. ⁵ However, the demand and explanation requirements of this section were but a codification of existing common law. (People v. Bradley (1969) 1 Cal.3d 80, 86, 81 Cal.Rptr. 457, 460 P.2d 129.) And in People v. King (1971) 5 Cal.3d 458, at page 464, 96 Cal.Rptr. 464, 487 P.2d 1032, our Supreme Court wrote, "the requirements for forcing entry to make an investigation should be no less stringent than they are where entry is made under a search warrant or for the purpose of arresting someone." It then explained,

" 'The purposes and policies underlying section 844 are fourfold: (1) the protection of the privacy of the individual in his home [citations]; (2) the protection of innocent persons who may also be present on the premises where an arrest is made [citation]; (3) the prevention of situations which are conducive to violent confrontations between the occupant and individuals who enter his home without proper notice [citations]; and (4) the protection of police who might be injured by a startled and fearful householder.' Although there is no statutory...